Accountability in the Administrative Law Judiciary: the Right and Wrong Kind

Denver University Law Review, Vol. 157, pp. 1-37, 2008

Journal of the National Association of the Administrative Law Judiciary, (reprinted), Vol. 30, pp. 19-67, 2010

U Denver Legal Studies Research Paper No. 09-28

38 Pages Posted: 19 Nov 2009 Last revised: 22 Mar 2012

See all articles by Edwin L. Felter

Edwin L. Felter

University of Denver Sturm College of Law

Date Written: November 18, 2009

Abstract

In the Introduction to the symposium edition of the law review, Justice Sandra Day O'Connor states: "Colorado administrative law judge Edwin L. Felter, Jr., [then] discusses and evaluates several forms of accountability in the administrative law judiciary, and compares them with prevalent forms of accountability in the judicial branch. Felter argues that codes of judicial conduct, as well as formal enforcement mechanisms, work together to maintain a balance of independence and accountability in the administrative law judiciary." The article analyzes the "right kinds" of accountability as distinguished from the "wrong kind" of accountability, i.e., political accountability. The article maintains that decisional independence is the cornerstone of any properly functioning adjudication system. The price of decisional independence is accountability to concepts and mechanisms other than the political system.

The article maintains that the first mechanism of accountability for all judicial and quasi-judicial officers is the requirement of "reasoned elaboration,"which is the prerequisite to second form of accountability, judicial review. The next mechanism is accountability to the relevant code of judicial conduct. Indeed, the 2007 ABA Model Code of Judicial Conduct refers to the administrative law judiciary. All codes of judicial conduct espouse the values of independence, impartiality, integrity, diligence and competence.

The article discusses and analyzes appropriate and inappropriate judicial performance evaluations. It distinguishes developmental evaluations (for the purpose of performance improvement, but not to affect pay or employment status) from judgmental evaluations. Developmental evaluations are sometimes in the form of anonymous surveys of practitioners and litigants, peer review quality assurance processes and/or both. Judgmental evaluations, which often legally required and can affect pay and employment status, can be evaluations by a supervisory judge or by a performance commission.

The article concludes with an argument against political evaluations of judges because these evaluations are generally based on the wrong reasons, e.g., the political clamor of the day. The article takes issue with James Bopp, Jr., Esq., of Indiana (who successfully argued Republican Party of Minnesota v. White before the U.S. Supreme Court), who maintains that judges should be responsive to the electorate and should be free to make campaign promises, e.g. "elect me and I'll string up those criminals." The article recommends that administrative law judges must constantly create, develop and implement meaningful accountability measures that demonstrate a high degree of accountability.

Suggested Citation

Felter, Edwin L., Accountability in the Administrative Law Judiciary: the Right and Wrong Kind (November 18, 2009). Denver University Law Review, Vol. 157, pp. 1-37, 2008; Journal of the National Association of the Administrative Law Judiciary, (reprinted), Vol. 30, pp. 19-67, 2010; U Denver Legal Studies Research Paper No. 09-28. Available at SSRN: https://ssrn.com/abstract=1508608

Edwin L. Felter (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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